D.B. (father) seeks extraordinary review of an order setting a hearing to develop a permanent plan for his son A.H. pursuant to Welfare and Institutions Code section 366.26.*fn1 (Cal. Rules of Court, rule 8.452.) Father argues that the juvenile court improperly denied him reunification services and failed to comply with the Indian Child Welfare Act (ICWA). We conclude the court did not err in denying father reunification services, but we grant the petition to secure compliance with the ICWA.

I. BACKGROUND

A.H. was delivered by R.H. (mother) in July 2008 after she was rushed to the hospital following an automobile accident. He was two months premature (weighing just two pounds, four ounces) and tested positive for amphetamines and other drugs. Mother died of her injuries a few days later. Father was not married to mother but was identified as A.H.‟s probable biological father.

The Humboldt County Department of Health and Human Services (DHHS) filed a dependency petition on August 1, 2008. Father was granted presumed father status on August 5, 2008. A.H. was initially detained at the hospital, where he continued to receive necessary medical treatment. He was considered a special needs child due to several conditions associated with his premature birth and prenatal drug exposure.

On August 25, 2008, the juvenile court sustained the petition following father‟s submission on the social worker‟s report. It found that A.H. was a person described by section 300, subdivision (g) in that (1) mother had died leaving no provision for his support, (2) the man to whom mother was legally married denied that he was the biological father and was unable and unwilling to provide support; and (3) father, the presumed father, was currently incarcerated at the Humboldt County Correctional Facility and was unable to provide care and support .

The case was set for a contested dispositional hearing. The social worker‟s report indicated that father was 41 years old and had three other children, none of whom were in his custody. He had started using alcohol, marijuana and methamphetamine during his teenage years and has struggled with drug addiction since that time. His criminal history consists of a 1985 misdemeanor conviction of receiving stolen property, a 1988 misdemeanor conviction of receiving stolen property, a 1988 felony conviction of residential burglary, a 2000 misdemeanor conviction of inflicting corporal injury on a cohabitant, misdemeanor convictions in 2002 of driving without a license, resisting arrest and possessing a hypodermic needle, and felony convictions in 2003 of receiving stolen property. Father was sentenced to four years in prison on the 2003 case.

In March of 2007, father twice violated the conditions of his parole by continuing his drug use, and he was ordered by the parole authorities to complete a residential treatment program at the Humboldt Recovery Center (HRC). He completed that program in January 2008. On July 27, 2008 (during the week that followed mother‟s death and A.H.‟s birth), father was arrested for possessing marijuana and using methamphetamine and was ordered by the parole authorities to complete 90 days at HRC upon his release from county jail. On September 3, 2008, father was released from jail with instructions to report to HRC and his parole officer. He did not report, and was arrested. He was scheduled to arrive at HRC for inpatient treatment on September 8, 2008, but failed to do so and continued to use drugs. He began his treatment at HRC the following day and, according to the social worker, "seemed committed to creating a clean and sober lifestyle for himself."

Father wanted to obtain custody of A.H. According to the social worker‟s report, he "has an unrealistic expectation that he will be able to change his life in a significant enough manner to be able to create a stable and wholesome home that would be safe and nurturing for [A.H.] He has a limited understanding of the kinds of problems and challenges that a premature child faces and fails to grasp his own limitations as a parent. [Father] has a long history of drug addiction and has not been able to provide a suitable home for his other children. A number of maternal relatives, including maternal grandmother, have indicated that they do not believe [father] will be able to be an adequate parent for minor [A.H.]" A.H. had been released from the hospital and placed with non-relative foster parents.

At the dispositional hearing commencing October 24, 2008, father indicated that he wanted to obtain custody of A.H. through a reunification plan. DHHS sought a bypass of reunification services pursuant to section 361.5, subdivision (b)(13), based on father‟s history of drug use and his failure to comply with court-ordered treatment. The court agreed with DHHS and denied services under this provision, setting the case for a permanency planning hearing under section 366.26. The court also determined that, contrary to father‟s arguments, the ICWA did not apply to this case.

II. DISCUSSION

A. Bypass of Reunification Services

Father argues that we must reverse the order denying him reunification services under section 361.5, subdivision (b)(13) because the evidence did not establish that he failed to comply with court-ordered drug treatment, as is required ...

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